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United States Court of Appeals

For the First Circuit

No. 15-2227

GUSTAVO ALBERTO CORADO-ARRIAZA,

Petitioner,

v.

LORETTA E. LYNCH,
Attorney General of the United States,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF


THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Lipez, and Kayatta,


Circuit Judges.

Jonathan Ng, with whom Jason Panzarino and The Law Office of
Johanna Herrero were on brief, for petitioner.
Lindsay B. Glauner, Senior Litigation Counsel, Office of
Immigration Litigation, U.S. Department of Justice, with whom
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
and Linda S. Wernery, Assistant Director, were on brief, for
respondent.

December 19, 2016


LYNCH, Circuit Judge. Gustavo Corado-Arriaza petitions

for review of the Board of Immigration Appeals' ("BIA") affirmance

of an immigration judge's ("IJ") denial of his motion to suppress

and consequent issuance of an order of removal. We agree with the

BIA's affirmance of the IJ's conclusion that Corado-Arriaza did

not present a prima facie case that the search and seizure leading

to his arrest amounted to an egregious violation of the Fourth

Amendment. We see no need to reach the independent grounds that

support the BIA's conclusion.

The petition is denied.

I.

Corado-Arriaza, a native and citizen of Guatemala,

entered the United States in June 2005 on a B-2 visitor visa that

permitted him to remain in the United States until December 2005.1

Corado-Arriaza does not dispute that he stayed in the United States

beyond the expiration of his visa and resided, without lawful

status, in Massachusetts until he was detained by United States

Immigration and Customs Enforcement ("ICE") agents on February 27,

2013.

1 A B-2 visa is issued to a "visitor for pleasure" and


permits the visitor to "be admitted for not more than one year,"
though the visitor "may be granted extensions of temporary stay in
increments of not more than six months each." 8 C.F.R.
214.2(b)(1); see Ibragimov v. Gonzales, 476 F.3d 125, 128 n.2
(2d Cir. 2007).

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On that day, he was working as a cook in a restaurant in

Wellesley, Massachusetts.2 At around 10:30 A.M., Corado-Arriaza's

manager and the head chef asked Corado-Arriaza to help them with

something. Corado-Arriaza followed the manager into a fifteen-

foot by fifteen-foot boiler room. Inside the room were four men

dressed in khakis and boots. Corado-Arriaza's manager told him

that the men wanted to talk to Corado-Arriaza and then left the

room.

Two of the men moved in front of the door to block

Corado-Arriaza's exit. They then identified themselves as ICE

agents, and one of the agents asked him, "Are you Gustavo Gomez?"

The agent showed him some papers, which he believed to be a

warrant, that included a fuzzy black-and-white photo of a man who

Corado-Arriaza said "was obviously not me." Corado-Arriaza told

the agent that his name was not Gustavo Gomez, but rather Gustavo

Corado-Arriaza. Corado-Arriaza later learned that Gustavo Gomez

was a man who had worked at the restaurant before him. When the

agent asked Corado-Arriaza for his identification, Corado-Arriaza

provided him with his Guatemalan driver's license.

After Corado-Arriaza showed the agent his driver's

license, the agents handcuffed his hands behind his back and began

2 We take the facts from Corado-Arriaza's declaration in


support of his motion to suppress, which the IJ and the BIA assumed
to be true.

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to question him about topics such as his date of birth and the

names of his children. At one point, Corado-Arriaza heard one of

the agents say, "It's not a match. The date of birth and the name

of the wife and son aren't the same." Nonetheless, the agents

continued to question Corado-Arriaza about his identity, and they

searched his pockets and his wallet. Corado-Arriaza continued to

tell them that he was not the man for whom they were looking, and

he "feared that it was going to go on and on if I didn't answer

all of their questions."

When asked by the agents whether he had a green card,

Corado-Arriaza answered "no," and did so "because I didn't feel

like I had any option but to answer their questions." At some

point, Corado-Arriaza told the agents that his passport was in his

jacket in the restaurant. After the agents retrieved the jacket,

they asked Corado-Arriaza how he had come to the United States,

and he told them that he had arrived on a visa.

Though the agents were carrying firearms, they did not

brandish them or point them at Corado-Arriaza. Nor does he allege

that the agents yelled at him or threatened him. Corado-Arriaza

did state, however, that the agents never read him his rights or

told him that he could call a lawyer.

The agents then placed Corado-Arriaza, still handcuffed,

in the back of their vehicle. Corado-Arriaza overheard the agents

saying, "What should we do with this guy?" One of the agents

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received a phone call, and Corado-Arriaza heard him say, "not the

target, but we got someone else." The agents then told Corado-

Arriaza that he was being arrested for overstaying his visa.

II.

On February 27, 2013, the Department of Homeland

Security ("DHS") served Corado-Arriaza with a Notice to Appear

that charged him with removability under 8 U.S.C. 1227(a)(1)(B)

on the basis that he had remained in the United States beyond the

six months permitted by his B-2 visa. On June 11, 2013, Corado-

Arriaza, through counsel, denied the allegations in the Notice to

Appear. DHS filed amended factual allegations on July 19, 2013,

clarifying the date that Corado-Arriaza was admitted into the

United States (June 27, 2005) and the date on which his B-2 visa

expired (December 25, 2005). Corado-Arriaza denied these factual

allegations.

In support of its allegations, DHS submitted a copy of

Corado-Arriaza's passport and an Arrival/Departure Form known as

a Form I-94. See 8 C.F.R. 264.1(a). The Form I-94 is a

registration form that "includes the collection of

arrival/departure and admission or parole information by DHS,

whether in paper or electronic format, which is made available to

the person about whom the information has been collected, as may

be prescribed by DHS." Id. 1.4. Corado-Arriaza's Form I-94

lists his name as "Gustavo Alberto Corado Arriaza," his date of

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birth as June 6, 1981, and his citizenship as Guatemalan. It also

lists his arrival date as June 27, 2005, and it is stamped with

the date "DEC 25 2005," which the government identifies as the

date through which Corado-Arriaza was authorized to remain in the

United States. Corado-Arriaza does not dispute that the

information contained in the Form I-94 is sufficient to establish

his removability.

During a hearing before the IJ, counsel for the

government informed the IJ that he obtained the Form I-94 -- after

Corado-Arriaza's arrest -- by contacting United States Customs and

Border Protection ("CBP"), which, like ICE, is an agency within

DHS. Corado-Arriaza acknowledges that the government was already

in possession of the Form I-94 well before his arrest and that the

Form I-94 played no role in his arrest.

On December 9, 2013, Corado-Arriaza filed a motion to

suppress "all evidence, physical and testimonial, obtained as the

fruit of the Immigration and Customs Enforcement's . . . unlawful

search, seizure, interrogation, arrest, and detention which

occurred on or about February 27, 2013." Specifically, he moved

for suppression of his passport and the Form I-94. Corado-Arriaza

argued that these documents should be suppressed, as relevant here,

(1) because they were obtained as the result of an "egregious"

violation of the Fourth Amendment, see INS v. Lopez-Mendoza, 468

U.S. 1032, 1050 (1984) (plurality opinion), and (2) because they

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were obtained in violation of DHS regulations. In support of his

motion, he submitted a declaration attesting to the facts about

his encounter with ICE described above.

On January 14, 2014, the IJ, following a merits hearing,

issued an oral decision denying Corado-Arriaza's motion to

suppress.3 The IJ correctly noted that the exclusionary rule does

not apply to searches and seizures in civil immigration proceedings

unless the alien can show "egregious violations of [the] Fourth

Amendment." Id. at 1050. The IJ found that Corado-Arriaza failed

to "allege[] facts in his declaration which, even if true, would

provide a reason to suppress the contested evidence."4

The IJ also noted that the government had stated during

the hearing that the Form I-94 was obtained independently of

Corado-Arriaza's seizure, and that Corado-Arriaza had offered no

evidence "that the ICE agents obtained the I-94 during

questioning."

On September 17, 2015, the BIA affirmed the IJ's denial

of Corado-Arriaza's motion to suppress. The BIA held that

3 Corado-Arriaza also filed a motion to terminate


proceedings, which the IJ denied, and a request for voluntary
departure, which the IJ granted. Corado-Arriaza presents no
developed argument independently challenging the denial of his
motion to terminate. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).

4 Corado-Arriaza did not present a claim to the IJ that he


was the subject of race discrimination, and he has not disagreed
with the government's assertion that the claim was not exhausted.

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"[a]ssuming the facts as presented by the respondent to be true,

and assuming that his arrest was illegal (an issue that we do not

need to reach), we uphold the Immigration Judge's determination

that based on the totality of the circumstances, the respondent

did not meet his burden of establishing a prima facie egregious

violation of the Fourth Amendment." The BIA explicitly rejected

Corado-Arriaza's argument that he had shown egregiousness because

he had felt intimidated and not free to leave, citing case law

explaining that that did not render his responses nonconsensual.

See INS v. Delgado, 466 U.S. 210, 216 (1984). It also explicitly

rejected his argument that it was enough to show that the agents

were visibly armed, citing case law stating that the presence of

a holstered firearm carried by a uniformed officer is unlikely to

contribute to coerciveness absent active brandishing of the

weapon. See United States v. Drayton, 536 U.S. 194, 205 (2002).

It further found that nothing about the conduct of the agents

undermined the reliability of the evidence DHS had proffered.

The BIA also "agree[d] with the Immigration Judge that

even if circumstances were considered to rise to the level of

'egregious,' the DHS presented sufficient independent evidence to

establish removability" through the Form I-94.

In addition, the BIA rejected Corado-Arriaza's argument

that alleged regulatory violations by the ICE agents warranted

suppression. The BIA also noted that whether or not the "arrest"

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was illegal had no bearing on Corado-Arriaza's removal

proceedings.

This petition for review followed.

III.

"Since 'the BIA adopted and affirmed the IJ's ruling,

and discussed some of the bases for the IJ's opinion, we review

both the BIA's and IJ's opinions.'" Sauceda v. Lynch, 819 F.3d

526, 531 (1st Cir. 2016) (quoting Idy v. Holder, 674 F.3d 111, 117

(1st Cir. 2012)). We review the resolution of legal issues,

including whether evidence is suppressible, de novo. Garcia-

Aguilar v. Lynch, 806 F.3d 671, 675 (1st Cir. 2015).

In Lopez-Mendoza, the Supreme Court held that the

exclusionary rule generally does not apply in removal proceedings.

468 U.S. at 1050. This court has noted that Lopez-Mendoza provides

"only a 'glimmer of hope of suppression.'" Kandamar v. Gonzales,

464 F.3d 65, 70 (1st Cir. 2006) (quoting NavarroChalan v.

Ashcroft, 359 F.3d 19, 22 (1st Cir. 2004)). Specifically, Corado-

Arriaza must have established that the search and seizure at issue

amounted to an "egregious violation[] of [the] Fourth Amendment"

that so "transgress[ed] notions of fundamental fairness and

undermine[d] the probative value of the evidence obtained," as to

constitute a Fifth Amendment violation of the right to due process.

Lopez-Mendoza, 468 U.S. at 1050-51 & n.5.

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Like the BIA, we bypass the question of whether there

was any Fourth Amendment violation. See MartinezMedina v. Holder,

673 F.3d 1029, 1034 (9th Cir. 2011) ("[W]e need not and do not

decide whether the seizure violated Petitioners Fourth Amendment

rights because we conclude that, even if [it did], the violation

was not egregious."); Yanez-Marquez v. Lynch, 789 F.3d 434, 451

(4th Cir. 2015); Martinez Carcamo v. Holder, 713 F.3d 916, 922-23

(8th Cir. 2013). We also need not spell out the precise conduct

that would rise to the level of an egregious violation, see Garcia-

Aguilar, 806 F.3d at 676 n.4, because it is plain from "the

totality of the circumstances" that the conduct here fell short,

see Martinez Carcamo, 713 F.3d at 922-23.

We likewise reject Corado-Arriaza's alternative argument

that suppression is warranted because, he alleges, the ICE agents

violated two regulatory provisions: 8 C.F.R. 287.3(c) (requiring

that an alien arrested without a warrant and placed in formal

proceedings be apprised of the reason for his arrest, his right to

representation, and that any statement he makes may be used against

him in a subsequent proceeding), and 8 C.F.R. 287.8(b)(1) ("An

immigration officer, like any other person, has the right to ask

questions of anyone as long as the immigration officer does not

restrain the freedom of an individual, not under arrest, to walk

away."). These regulations, even if violated, do not furnish

aliens with a right to suppression in removal proceedings.

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Navarro-Chalan, 359 F.3d at 23 ("[8 C.F.R. 287.3(c) and

287.8(b)(1)] 'do not, are not intended to, shall not be construed

to, and may not be relied upon to create any rights, substantive

or procedural, enforceable at law by any party in any matter, civil

or criminal.'" (quoting 8 C.F.R. 287.12)); see also, e.g., Yanez-

Marquez, 789 F.3d at 474.

IV.

The petition for review is denied.

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